Citation Nr: 0524387
Decision Date: 09/07/05 Archive Date: 09/13/05
DOCKET NO. 03-32 208 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased evaluation for degenerative disc
disease and arthritis of the thoracolumbosacral spine, under
old and new criteria, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
Appellant, MT and MT
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The veteran had active service from September 1942 to
February 1946, and from May 1946 to June 1964.
This appeal to the Board of Veterans Appeals (the Board) is
from the rating action by the Department of Veterans Affairs
(VA) Regional Office (RO) in Waco, Texas, in May 1995, which
continued the 20 percent rating for the herein concerned
disorder which had been in effect since 1980. The veteran
requested an increase in the rating assigned I October 2001.
The veteran and two others provided testimony before a
Hearing Officer at the RO in August 2003; a transcript is of
record.
In a rating action in December 2004, the RO granted service
connection for L-5 radiculopathy, left lower extremity,
associated with degenerative disc disease and arthritis of
the thoracic and lumbosacral spine, and assigned a 10 percent
rating from June 12, 2003; and granted service connection for
neurologic symptoms, right lower extremity, associated with
degenerative disc disease and arthritis of the thoracic and
lumbosacral spine, and assigned a 10 percent rating from
April 23, 2004. Although certainly associated with the
herein concerned disability, neither of these issues is part
of the current appeal.
Service connection is also in effect for diabetes mellitus,
rated as 10 percent disabling; and scar, excision of Baker's
Cyst, popliteal space of the right knee; scar, excision of
Baker's Cyst, popliteal space of the left knee;
dermatophytosis of the feet; and multiple burn scars on the
right forearm, left wrist and both hands, each evaluated as
noncompensably disabling.
FINDINGS OF FACT
1. Adequate evidence is now of record for an equitable
disposition of the pending appellate issue.
2. Since his reopened claim in the 1990's, the veteran's
measurable lumbosacral spine limitations are generally more
often than not, severe in nature with significant pain on all
motions, continuously; his intervertebral disc syndrome has
been pronounced, with persistent symptoms compatible with
sciatic neuropathy with characteristic pain and demonstrable
muscle spasm, absent ankle jerk, or other neurological
findings appropriate to the site of the diseased disc, with
little intermittent relief.
3. The veteran's low back disorder is manifested by
profound, severe degenerative changes through the lumbosacral
area, which precipitates daily, constant and severe pain,
which exacerbates to a level of 10/10 on frequent occasions;
these symptoms render him virtually immobile without the use
of a walker; he is required to take to his bed (or
alternatively, to remain seated) because of his lumbosacral
problems with incapacitating episodes having a total duration
of at least six weeks during the past 12 months during which
time he is under a physician's care.
CONCLUSION OF LAW
The criteria, both old and new, for an evaluation of 60
percent for degenerative disc disease and osteoarthritis,
lumbosacral spine, are met. 38 U.S.C.A. §§ 1155, 5103, 5107
(West 1991 & Supp. 2004); 38 C.F.R. §§ 4.1, 4.7, 4.25, 4.40,
4.45, 4.59, 4.71, Diagnostic Code 5292, 5293, 5295 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminary Considerations
Numerous regulatory changes have been made during the course
of the current appeal. The veteran has been apprised thereof
throughout, and in various communications, he has indicated
an understanding of what is required and who is responsible
for obtaining what evidence. Additional records are
undoubtedly available somewhere, although the veteran has
indicated that he is unaware of additional records which may
be feasibly available at present. However, additional
examinations have been undertaken, and the Board finds no
need to delay the case further by further development. With
regard to the appellate issue, the Board finds that adequate
safeguards have been implemented as to protect the veteran's
due process rights and that to proceed with a decision in
this issue at the present time does not, in any way, work to
prejudice him.
Criteria
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4 (2004). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and the residual conditions in civil
occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1
(2004).
In determining the disability evaluation, VA has a duty to
acknowledge and consider all regulations that are potentially
applicable through the assertions and issues raised in the
record, and to explain the reasons and bases for its
conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
The assignment of a particular Diagnostic Code is dependent
on the facts of a particular case. See Butts v. Brown, 5
Vet. App. 532, 538 (1993). One Diagnostic Code may be more
appropriate than another based on such factors as an
individual's relevant medical history, the current diagnosis,
and demonstrated symptomatology. In reviewing the claim for
a higher rating, the Board must consider which Diagnostic
Code or Codes are most appropriate for application in the
veteran's case and provide an explanation for the conclusion.
See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).
The Board notes that there has been a change in the rating
criteria which pertain to disorders of the spine. The VA has
issued revised regulations concerning the sections of the
rating schedule that deal with intervertebral disc syndrome.
67 Fed. Reg. 54345-54349 (August 22, 2002). The Board also
notes that for spine disorders which are not rated under the
code for intervertebral disc syndrome, there is a new General
Rating Formula for Diseases and Injuries of the Spine. 68
Fed. Reg. 51454-51458 (August 27, 2003).
Under the earlier regulations, [those under which he has been
rated at 20 percent disabling until the reopening of his
claim in the 1990's]. a low back disability may be rated
under 38 C.F.R. § 4.71a, Diagnostic Code 5295, which provides
that a noncompensable rating is warranted where a lumbosacral
strain is productive of slight subjective symptoms only. A
10 percent disability rating may be assigned where there is
characteristic pain on motion. A 20 percent rating is
warranted where there is muscle spasm on extreme forward
bending, or unilateral loss of lateral spine motion in a
standing position. A 40 percent rating is warranted if the
lumbosacral strain is severe with listing of the whole spine
to the opposite side, a positive Goldthwait's sign, marked
limitation of forward bending in a standing position, loss of
lateral motion with osteoarthritic changes, narrowing or
irregularity of joint space, or some of the above with
abnormal mobility on forced motion.
Another potentially applicable provision under the old
regulations is Diagnostic Code 5293. Under Diagnostic Code
5293, a noncompensable rating is warranted for intervertebral
disc syndrome that is postoperative and cured. A 10 percent
rating is warranted for intervertebral disc syndrome that is
mild in degree. A 20 percent rating is warranted for
intervertebral disc syndrome that is moderate in degree with
recurring attacks. A 40 percent rating is warranted for
severe intervertebral disc syndrome with recurring attacks
and little intermittent relief. A 60 percent rating is
warranted for intervertebral disc syndrome which is
pronounced, with persistent symptoms compatible with sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings
appropriate to the site of the diseased disc, with little
intermittent relief.
A back disorder may also be rated based on the extent to
which the disorder limits the motion of the back. Diagnostic
Code 5292 provides that a 10 percent rating is warranted for
limitation of motion of the lumbar spine which is slight in
degree. A 20 percent rating is warranted for moderate
limitation of motion. A 40 percent rating is warranted if
the limitation of motion is severe.
As was noted above, the VA has issued revised regulations
concerning the sections of the rating schedule that deal with
intervertebral disc syndrome. 67 Fed. Reg. 54345-54349
(August 22, 2002). The new rating criteria provides as
follows:
Evaluate intervertebral disc syndrome (preoperatively or
postoperatively) either on the total duration of
incapacitating episodes over the past 12 months or by
combining under Sec. 4.25 separate evaluations of its chronic
orthopedic and neurologic manifestations along with
evaluations for all other disabilities, whichever method
results in the higher evaluation. With incapacitating
episodes having a total duration of at least six weeks during
the past 12 months, rate as 60 percent disabling; With
incapacitating episodes having a total duration of at least
four weeks but less than six weeks during the past 12 months,
rated as 40 percent disabling; With incapacitating episodes
having a total duration of at least two weeks but less than
four weeks during the past 12 months, rate as 20 percent
disabling; With incapacitating episodes having a total
duration of at least one week but less than two weeks during
the past 12 months, rate as 10 percent disabling.
Note (1): For purposes of evaluations under 5293, an
incapacitating episode is a period of acute signs and
symptoms due to intervertebral disc syndrome that requires
bed rest prescribed by a physician and treatment by a
physician. "Chronic orthopedic and neurologic
manifestations" means orthopedic and neurologic signs and
symptoms resulting from intervertebral disc syndrome that are
present constantly, or nearly so.
Note (2): When evaluating on the basis of chronic
manifestations, evaluate orthopedic disabilities using
evaluation criteria for the most appropriate orthopedic
diagnostic code or codes. Evaluate neurologic disabilities
separately using evaluation criteria for the most appropriate
neurologic diagnostic code or codes.
Note (3): If intervertebral disc syndrome is present in more
than one spinal segment, provided that the effects in each
spinal segment are clearly distinct, evaluate each segment on
the basis of chronic orthopedic and neurologic manifestations
or incapacitating episodes, whichever method results in a
higher evaluation for that segment.
The Board also notes that for spine disorders which are not
rated under the code for intervertebral disc syndrome, there
is a new General Rating Formula for Diseases and Injuries of
the Spine. 68 Fed. Reg. 51454-51458 (August 27, 2003). The
General Rating Formula for Diseases and Injuries of the Spine
(For diagnostic codes 5235 to 5243 unless 5243 is evaluated
under the Formula for Rating Intervertebral Disc Syndrome
Based on Incapacitating Episodes) provides as follows: With
or without symptoms such as pain (whether or not it
radiates), stiffness, or aching in the area of the spine
affected by residuals of injury or disease Unfavorable
ankylosis of the entire spine, rate as 100 percent disabling;
Unfavorable ankylosis of the entire thoracolumbar spine, rate
as 50 percent disabling; Unfavorable ankylosis of the entire
cervical spine; or, forward flexion of the thoracolumbar
spine 30 degrees or less; or, favorable ankylosis of the
entire thoracolumbar spine, rate as 40 percent disabling;
Forward flexion of the cervical spine 15 degrees or less; or,
favorable ankylosis of the entire cervical spine, rate as 30
percent disabling; Forward flexion of the thoracolumbar spine
greater than 30 degrees but not greater than 60 degrees; or,
forward flexion of the cervical spine greater than 15 degrees
but not greater than 30 degrees; or, the combined range of
motion of the thoracolumbar spine not greater than 120
degrees; or, the combined range of motion of the cervical
spine not greater than 170 degrees; or, muscle spasm or
guarding severe enough to result in an abnormal gait or
abnormal spinal contour such as scoliosis, reversed lordosis,
or abnormal kyphosis, rate as 20 percent disabling; Forward
flexion of the thoracolumbar spine greater than 60 degrees
but not greater than 85 degrees; or, forward flexion of the
cervical spine greater than 30 degrees but not greater than
40 degrees; or, combined range of motion of the thoracolumbar
spine greater than 120 degrees but not greater than 235
degrees; or, combined range of motion of the cervical spine
greater than 170 degrees but not greater than 335 degrees;
or, muscle spasm, guarding, or localized tenderness not
resulting in abnormal gait or abnormal spinal contour; or,
vertebral body fracture with loss of 50 percent or more of
the height, rate as 10 percent disabling.
Note (1): Evaluate any associated objective neurologic
abnormalities, including, but not limited to, bowel or
bladder impairment, separately, under an appropriate
diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes,
normal forward flexion of the cervical spine is zero to 45
degrees, extension is zero to 45 degrees, left and right
lateral flexion are zero to 45 degrees, and left and right
lateral rotation are zero to 80 degrees. Normal forward
flexion of the thoracolumbar spine is zero to 90 degrees,
extension is zero to 30 degrees, left and right lateral
flexion are zero to 30 degrees, and left and right lateral
rotation are zero to 30 degrees. The combined range of
motion refers to the sum of the range of forward flexion,
extension, left and right lateral flexion, and left and right
rotation. The normal combined range of motion of the
cervical spine is 340 degrees and of the thoracolumbar spine
is 240 degrees. The normal ranges of motion for each
component of spinal motion provided in this note are the
maximum that can be used for calculation of the combined
range of motion.
Note (3): In exceptional cases, an examiner may state that
because of age, body habitus, neurologic disease, or other
factors not the result of disease or injury of the spine, the
range of motion of the spine in a particular individual
should be considered normal for that individual, even though
it does not conform to the normal range of motion stated in
Note (2). Provided that the examiner supplies an
explanation, the examiner's assessment that the range of
motion is normal for that individual will be accepted.
Note (4): Round each range of motion measurement to the
nearest five degrees.
Note (5): For VA compensation purposes, unfavorable
ankylosis is a condition in which the entire cervical spine,
the entire thoracolumbar spine, or the entire spine is fixed
in flexion or extension, and the ankylosis results in one or
more of the following: difficulty walking because of a
limited line of vision; restricted opening of the mouth and
chewing; breathing limited to diaphragmatic respiration;
gastrointestinal symptoms due to pressure of the costal
margin on the abdomen; dyspnea or dysphagia; atlantoaxial or
cervical subluxation or dislocation; or neurologic symptoms
due to nerve root stretching. Fixation of a spinal segment
in neutral position (zero degrees) always represents
favorable ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar
and cervical spine segments, except when there is unfavorable
ankylosis of both segments, which will be rated as a single
disability. (Code 5235), Vertebral fracture or dislocation;
(Code 5236), Sacroiliac injury and weakness; (Code 5237),
Lumbosacral or cervical strain; (Code 5238), Spinal stenosis;
(Code 5239), Spondylolisthesis or segmental instability;
(Code 5240), Ankylosing spondylitis; (Code 5241), Spinal
fusion; (Code 5242), Degenerative arthritis of the spine (see
also Diagnostic Code 5003); (Code 5243), Intervertebral disc
syndrome.
The Court has emphasized that when assigning a disability
rating, it is necessary to consider functional loss due to
flare-ups, fatigability, incoordination, and pain on
movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7
(1995).
The rating for an orthopedic disorder should reflect any
functional limitation which is due to pain which is supported
by adequate pathology and evidenced by the visible behavior
of the claimant undertaking the motion. Weakness is also as
important as limitation of motion, and a part which becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. § 4.40.
The factors of disability reside in reductions of their
normal excursion of movements in different planes.
Instability of station, disturbance of locomotion, and
interference with sitting, standing, and weight bearing are
related considerations. 38 C.F.R. § 4.45. It is the
intention of the rating schedule to recognize actually
painful, unstable, or malaligned joints, due to healed
injury, as entitled to at least the minimal compensable
rating for the joint. 38 C.F.R. § 4.59.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the veteran. See
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a
veteran need only demonstrate that there is an 'approximate
balance of positive and negative evidence' in order to
prevail." To deny a claim on its merits, the preponderance
of the evidence must be against the claim. Alemany v. Brown,
9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at
54.
Factual Background
Prior evaluations and clinical records are in the file for
comparative purposes. X-rays and other reports from 1978-
1980 show X-ray evidence of degenerative changes in the
spine.
The veteran filed a claim to reopen his claim for increased
compensation in the 1990's.
VA outpatient reports from June 1994 to March 1995 show
ongoing complaints of back pain and motion limitations with
some radiation of symptoms into the lower extremities.
Degenerative disc disease was diagnosed.
VA hospital and evaluative records from about 1997 or so show
the veteran had repeated episodes of falling when trying to
walk. He was given a walker for stabilization.
A statement is of record from CLL, D.C., dated in April 2003,
indicating that she had seen the veteran in December 2001
with the primary complaints of back pain, as well as painful,
stiff and swollen joints. Physical examination showed
restricted range of motion, absent left Achilles reflex,
positive left heel walk test, positive Ely's test
bilaterally, and left pelvic deficiency with postural
alterations. She had been unable to perform some tests due
to severe tightness in the muscles of the lower extremity.
He underwent some 16 chiropractic treatments until January
2002. She had since talked to his wife who said he was
having ongoing debilitating low back pain.
The physician's clinical findings included, in the thoracic
and cervical regions, loss of the lordotic curve and
generalized spondylosis. In the lumbar spine, in pertinent
part, there was severely decreased lumbar lordosis; moderate
scoliosis apexing to the left at L-3 and to the right at T-8;
narrowed disc spaces between L-1/L-2, L-2/L-3, L-4/L-5, L-
5/S-1 contributing to neuroforaminal encroachment at those
levels; severe osteoarthritis through the lumbar spine less
severe at the L-3/L-4 level; grade 2 spondylolisthesis at L-
5; a 2 1/2 cm. of anterior weight bearing of the lumbar spine;
left body rotation at L-1; pelvic unleveling, low on the
right at 13 mm.
VA examination in December 2002 reflected complaints of pain,
weakness, stiffness, and lack of endurance. The veteran said
he had had low backache since 1955 or so. The pain was
present at all times. He said he no longer lifted heavy
objects and this had helped with exacerbations or flare-ups.
The pain was described as steady and dull but continuous. He
was unable to walk even around the house without assistive
devices, except for very short distances during which times
he was particularly careful. He always kept a hand on the
furniture for extra balance. He reported that he sits most
of the time except when he has to leave the house for medical
appointments.
On examination, it was noted that he walked with a wide gate
due to ataxia and kept his head straight and always with his
eyes wide open or he would fall. The examiner noted range of
motion to be flexion of 0-70 degrees; extension of 0-15
degrees; lateral flexion to both sides, 0-15 degrees;
rotation 0-35 degrees, bilaterally. Legs could be brought to
180 degrees. He had frequent urination due to his prostate
problems.
X-rays were noted from the prior evaluation to have shown
severe degenerative disc disease and severe degenerative
joint disease of the lumbar spine. He also had grade 2/3
spondylolisthesis and suspected spondylosis. Degeneration
with nitrogen gas in the disc space was noted at L-4/L-5.
VA outpatient clinic reports show that he was seen on several
occasions in the spring and summer of 2003 to include
complaints of low back pain which was a 6.5 on a 1/10 scale.
On VA examination in August 2003, the then 86 year old
veteran reported that since his in-service injury he had had
increasing lower back problems. He had been asked if he
wanted a fusion but declined since he had had a friend who
had an unsuccessful one. The veteran described his pain as
being in the lower lumbar region, centrally located, constant
and at times severe. He took minimal medications because of
all of his other problems and a history of side effects. The
flare-ups were on a constant basis and were precipitated by
movement. He could alleviate the pain somewhat by lying
supine with his knees elevated. During flare-ups there was
some additional limitation of motion and function.
He was noted by the examiner to have loss of the lordotic
curve in the lower lumbar spine region. Flexion was 55
degrees, extension was 20 degrees and left and right to 10
degrees with mild pain. He had pain on motion, primarily of
the lumbar spine, as well as tenderness. Neurologically, he
had patchy decreased lower extremity impairment; reflexes
were 1+ throughout.
X-rays were taken which showed marked narrowing of multiple
lumbar disc from L-1/L-2, and gas in the L-1/L-2 and L-4/L-5
discs consistent with degenerative disc changes. He had at
least grade II spondylolisthesis at L-5/ S-1. Computerized
tomography (CT) scan showed gad in L-1 to L-3/L-4 and L-4/L-5
discs consistent with degenerative disc disease.
X-rays at L-1/L-2 showed an entire osteophyte formation,
osteophyte formation at facet joints and degenerative disc
disease without significant narrowing of the neural foramina
and without significant canal stenosis. There was no sign of
herniation.
X-rays at L-2/L-3 showed degenerative changes similar to
those above except their appearance suggested mild central
canal stenosis and mild narrowing of neural foramina without
definitive encroachment.
X-rays of L-3/L-4 showed degenerative changes without
definitive herniated nucleus pulposus but there was mild
central canal stenosis by bony and soft tissue degenerative
changes.
X-rays of L-4/L-5 showed degenerative disc disease and facet
joint degenerative changes without evidence of herniated
nucleus pulposus and without significant central canal
stenosis but moderate narrowing of the neural foramina.
X-rays of L-5/S-1 were said to be difficult to interpret due
to the presence of spondylolisthesis and sharp angulation at
lumbosacral junction with obtained axial image not parallel
to the disc space and with resultant distortion of the spinal
canal. It was felt that there was apparent narrowing of the
neural foramina without disc herniation. Central canal
stenosis was not well judged.
The physician's overall impression was of extensive
degenerative disease at multiple lumbar levels, without
evidence of herniated nucleus pulposus or significant spinal
stenosis at L-1/L-2 through L-4/L-5; bilateral spondylolysis
of L-5 and at least grade II spondylolisthesis at L-5/S-1;
and marked narrowing of L-5/S-1 at lumbosacral junction and
distortion of the central canal due to degenerative changes
and spondylolisthesis. He was also diagnosed as having
degenerative changes of the thoracic vertebrae and
rotoscoliosis of the dorsal spine convexed to the right.
The veteran's testimony is of record with regard to his
symptoms along with several written communications in that
regard. In his Substantive Appeal, the veteran stated that
he would be satisfied with a 40 percent rating for his low
back.
VA outpatient reports through February 2004 are in the file.
A statement is of record from Dr. L, dated in March 2004, to
the effect that the veteran had been at her office with
complained of chronic low back pain. He presented with a
walker and indicated he was unable to walk any distance
without it. On examination, she found that he had absent
right Achilles reflex and reduced left Achilles reflex. He
had grade 4 muscle weakness of bilateral hip flexor and
hamstring muscles, and right quadriceps. His left heel walk
test was positive. He had restricted lumbar extension,
lateral flexion and rotation. He had positive Lewin-
Gaenslon's test, bilaterally. There was a positive right
iliac compression test, and positive Ely's sign bilaterally.
He had positive left Goldthwaite's test and right pelvic
deficiency with postural alterations.
A lumbar X-ray series in all projections had been reviewed by
a radiologist, SJV, M.D., who reported that the veteran had
the following:
This patient has a very severe diffuse
spondylosis and degenerative facet
disease. There is a mild
levorotoscoliosis in the mid and upper
lumbar spine, centered at the L1 level.
There is severe degenerative disk disease
at the lumbosacral junction. This
patient has a large lumbosacral angle.
There appears to be a grade 2, almost a
grade 3, spondylolisthesis between L5 and
S1. That subluxation is really quite
profound, approximating 2 cm. or more.
This is likely related to bilateral
spondylolysis involving the L5 pars
interarticularis, creating intersegmental
instability between L5 and S1. This
represents severe instability.
There is also severe degenerative disk
disease with disk space narrowing at the
L4-5 level. I note severe degenerative
disk disease and disk space height at the
L1-2 and L2-3 levels. There is a slight
retrolisthesis of L3 with respect to L4,
and approximating 4 or 5 mm. This type
of listhesis, degenerative in nature, is
very likely associated with central
spinal stenosis at the L3-4 level.
There is prominent posterior
osteophytosis at the L2-3 level. There
appears to be a slight listhesis between
L1 and L2, about 2 mm. Spinal stenosis
may also be present at the L1-2 or L2-3
levels.
I note no compression fractures. There
is heavy aortic calcification but no
definite aneurysm. I see no
sacroiliitis. There are mild to moderate
degenerative changes of both hip joints.
These represent extremely severe
degenerative changes throughout the
spine, with secondary intersegmental
instability of several levels. The most
profound of this intersegmental
instability is noted at the lumbosacral
junction, where there is a severe, grade
2 or almost a grade 3 spondylolisthesis.
This is likely related to underlying
spondylolysis. His may be associated
with nerve root stretching or compression
at this or 1 of several other levels.
Dr. V suggested that because of the severity of the described
findings, the veteran should have additional CT or possibly a
magnetic resonance imaging (MRI) as neural compromise was
probable, and the findings needed to be clinically
correlated.
The veteran underwent another VA specialized evaluation in
May 2004. At that time, his file was reviewed by the
examiner. He complained of pain, stiffness and weakness in
the midline of the low lumbar region and to the left and
right of midline. The pain was constant, present all of the
time, and worsened with any activity including ambulation.
The aching back pain would be constant and then (in what
seemed to the examiner to be classic pseudoclaudication from
spinal stenosis), moved into the upper buttocks and upper
thighs after 100 yards or so of ambulation. The intensity of
the pain was said to be at 7/10 on a constant, daily basis.
The pain increased to 10/10 when it was bad and that happened
several times a week. He had some temporary relief from
daily use of various regimens including vibratory and
analgesics.
He had had severe flare-ups on 4 occasions in the past
including when he had such a serious exacerbation that he
could not walk or bear weight for an entire day. Someone
then had to literally pick him up and get him to bed. There
had been no particular precipitating factor. He had also
noted weakness, particularly on the left leg, but also some
on the right as well. He was able to walk no further than
100 yards, and this infrequently and with a walker.
Ranges of motion were forward flexion of 80 degrees (normal
0-90); left lateral flexion 15 degrees (normal 0-30); right
lateral flexion, 15 degrees (normal 0-30); left and right
lateral rotation, 15 degrees (normal 0-45).
The examiner noted that he had grimacing and grunting in all
levels of motion, more on the lateral rotation, bilaterally.
He had increased symptoms with flare-ups involving repeated
and resisted motion, with further range of motion, slight,
because of pain and lack of endurance. There was localized
tenderness along the belt line in the spinous processes and
paravertebral space to both right and left without spasm
there. He had straightening of the lordotic curve. There
were diminution of the sensations into the legs, and weakness
of musculature. Right ankle jerk was present but weak; left
ankle jerk was absent.
In sum, the veteran described 4 episodes in the past year
wherein he had been totally and completely incapacitated by
his low back problems, lasting about a day or so; but he had
daily hindered function and mobility. CT scan showed marked
narrowing of multiple lumbar disks from L-1 through S-1 and
changes comparable to those described above. Final diagnosis
was multilevel severe degenerative arthritis, degenerative
disc disease with symptomatic spinal stenosis and persisting
left L-5 radiculopathy.
Analysis
The veteran's record is now sufficient to provide a sound
evidentiary basis for assessing his current disability
picture. The aggregate findings of the recent private and VA
examinations and clinical records, and the veteran's own
responses, provide an ample delineation of which symptoms are
attributable to his service-connected disability as to permit
equitable resolution of the claim now pending.
The veteran has been assigned a 20 percent rating for his low
back disability for some time.
In recent adjudicative action, the RO has separately granted
service connection, and assigned separate ratings for, the
right and left lower extremity neurological impairment
secondary thereto. Those issues are not part of the current
appeal.
In this case, prior to the enactment of new regulations, a 40
percent rating was assignable under Code 5292 when limitation
of motion was severe. Under 5293, a 40 percent rating
required severe intervertebral disc syndrome with recurring
attacks and little intermittent relief. The veteran clearly
fulfills all of those requirements.
Under the prior regulations, a 60 percent rating required an
intervertebral disc syndrome which was pronounced, with
persistent symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc, with little intermittent relief.
Accordingly, in the veteran's case, under the old criteria,
and comparing those requirements with the clinical findings
delineated above, he also reasonably met the criteria for 60
percent under these alternative provisions.
Under the new regulations, intervertebral disc syndrome is
ratable either on the total duration of incapacitating
episodes over the past 12 months or by combining under Sec.
4.25 separate evaluations of its chronic orthopedic and
neurologic manifestations along with evaluations for all
other disabilities, whichever method results in the higher
evaluation.
In the veteran's case, he does not fulfill the overall
mandates of a 60 percent rating using the latter formula,
i.e., both specific orthopedic and neurological components,
since he has separate service connection and ratings for
bilateral lower extremity radiculopathy, which are not issues
on appeal.
However, there is now an alternative way to fulfill the
requirements for a 60 percent rating and that is when there
are incapacitating episodes having a total duration of at
least six weeks during the past 12 months. Associated
regulatory notes delineate what constitutes an incapacitating
episode to include bed rest prescribed by a physician and
treatment by a physician.
In assessing the veteran's clinical data at present, he has
extraordinarily and inexorable degenerative changes.
Repeated examiners have described his degree of impairment in
terms such as profound, extremely severe and tantamount to an
anklyosed lower back.
As for his mobility, he has very little, and even that is
circumscribed by his use of the walker. He should not be
penalized for the ongoing and valiant attempts he makes to
maintain some modicum of normalcy in his life which includes
attempting to keep "moving" albeit this is not easy.
The Board finds his word to be credible when he asserts that
examiners have been amazed to see that he is able to do as
well as he does given the nature of his osseous degeneration
and deterioration. And the fact that he is now in his late
80's does not seem to have impacted his commitment to staying
mobile as long as possible, although his service-connected
disabilities have conspired to preclude that with some
frequency.
In addition, he has daily severe pain and flare-up episodes
that put him totally out of commission and in bed or at least
sitting without moving. In fact, during those occasions, he
is unable to get himself in and out of bed and requires help
to do that as well. He was also noted to receive ongoing
care for his back problems and takes various pain
medications, as well as other therapies when required.
Accordingly, the Board finds that resolving doubt in his
favor, under the new criteria, the veteran is also entitled
to a 60 percent rating for his low back disorder.
Otherwise, the evidence does not reflect that other than as
contemplated under schedular criteria, his low back disorder
does not require the application of extraschedular criteria
under 38 C.F.R. § 3.321(b).
ORDER
An evaluation of 60 percent for degenerative disc disease and
osteoarthritis, lumbosacral spine, is allowed, under both new
and old criteria, from the date of his reopened claim,
subject to the regulatory provisions relating to the payment
of monetary awards.
____________________________________________
V L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs